The Centre for Human Rights, Faculty of Law, University of Pretoria, in collaboration with the Norwegian Ministry of Foreign Affairs, hosted its annual Advanced Human Rights Course (AHRC) on Judicial Enforcement of Socio-Economic Rights in Africa from 13 to 17 May 2019.
The course was attended by students on the Human Rights and Democratisation in Africa (HDRA) programme. Other participants included PhD candidates, human rights activists, government officials, judicial officers, policymakers and academics.
This year the Centre was honoured to have 6 African judges attending the course on the judicial enforcement of socio-economic rights in Africa. The judges in attendance were:
- Justice Joan Eyi King (Ghana)
- Justice Musa Ssekaana (Uganda)
- Justice Moroke Alexis Mokhesi (Lesotho)
- Justice Girma Dechasa (Ethiopia)
- Justice Senbeta Abdeta Negasa (Ethiopia) and
- Justice Antonia Guvava (Zimbabwe).
Lecturers and speakers on the course included:
- Prof Frans Viljoen, Centre for Human Rights, University of Pretoria
- Dr Gustav Muller, Faculty of Law, University of Pretoria
- Prof Malcolm Langford, Associate Professor, Faculty of Law, University of Oslo; Co-Director, Centre for Law and Social Transformation, University of Oslo, Norway
- Prof Michelo Hansungule, Centre for Human Rights, Faculty of Law, University of Pretoria
- Ms Kate Tissington, Socio-Economic Rights Institute of South Africa (SERI)
- Justice Johann van der Westhuizen, (retired) Judge of the Constitutional Court of South Africa; Extraordinary Professor, Centre for Human Rights
- Mr Amar Mahadew, University of Mauritius
- Ms Salima Namusobya, Executive Director, Initiative for Social and Economic Rights, Uganda
The course commenced with Mr Dennis Antwi (Programme Manager, AHRC) setting the scene and introducing the course themes. He was followed by Prof Frans Viljoen who welcomed the participants to the course and introduced the moot exercise to take place on the last day of the course.
Prof Viljoen delivered a lecture on comparative regional adjudication of socio-economic rights. He compared the justiciability of socio-economic rights in Africa with cases of the Inter-American and the European systems. In his discussion, he stated that the socio-economic rights are indeed justiciable in Africa, and internationally, both directly or indirectly.
Dr Gustav Muller focused on the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the adjudication of socio-economic rights under the Optional Protocol to the ICESCR. He stressed that the Universal Declaration on Human Rights (UDHR) adopted by the UN General Assembly in 1948, is one of the most important sources of economic, social and cultural rights and that these rights, as enshrined in international and regional human rights instruments, are legally binding on state parties. He pointed out that the Optional Protocol empowers the Committee on Economic, Social and Cultural Rights to receive and consider communications from individuals who allege violations of their rights under the Covenant by a state party.
Mrs Karabo Ozah presented a lecture on the right to education under South African law. She discussed the challenges and related case law pertaining to the right to education in the country. She also shared some experiences and cases in which the Centre for Child Law was involved.
Prof Malcolm Langford facilitated discussions on the conceptual issues related to socio-economic rights, comparative domestic perspectives on socio-economic- rights adjudication, as well as the implementation and impact of socio-economic rights adjudication. Prof Langford identified lack of resources, political will and corruption as some of the conceptual issues impeding the judicial enforcement of socio-economic rights in Africa. He further shared his experiences of work he had done around the globe on issues orbiting round the justiciability of socio-economic rights. He reported that he had visited Mrs Irene Grootboom’s place in Cape Town and was overwhelmed by the amount of change within the community of Wallacedene after the case Government of the Republic of South Africa and Others v Grootboom and Others. Mrs Grootboom, however, passed away homeless and penniless.
Other topics discussed during the course were:
- Decolonising human rights: Politics of socio-economic rights on the African continent by Prof. Michelo Hansungule.
- The right to property under the South African Constitution by Dr Gustav Muller
- The right to housing under the South African Constitution by Ms Kate Tissington
- Socio-economic rights adjudication under the South African Bill of Rights by Justice. Johann van der Westhuizen.
- Socio-economic rights in the constitution versus socio-economic rights in parliamentary statutes: The case of Mauritius as a welfare state by Mr Amar Mahadew
- A typology of justiciability of socio-economic rights in Africa by Prof Frans Viljoen
- The reality of socio-economic rights litigation in Uganda by Ms Salima Namusobya.
The key highlights of the course were the visits to the Constitutional Court and the South African Human Rights Commission (SAHRC). During the Constitutional Court visit, participants witnessed arguments made by counsels in the case of A B and Another v Pridwin Preparatory School and Others. An appeal was made against the High Court ruling in favour of the school principal, who allegedly terminated the applicant’s children’s school contract due to the inappropriate conduct of their father. The High Court had ruled in favour of the school principal, stating that the school legitimately enforced the termination clause as per the contract they had with the parents to enrol the children in the school. The case went on appeal, supported by the Centre for Child Law acting as amicus curiae, who argued against the violation of children’s rights to basic education and the right to be heard for children on matters concerning them. The applicant’s argument was also that the children cannot be held accountable for the sins of their father and the procedure was taken to terminate the contract of their schooling was against procedural law, international law, the Constitution, the Children’s Act and therefore flawed. In addition, the applicant argued that the principal’s decision was against the principle of ‘in the best interest of the child’ and therefore invalid. Following the above, a session was held at the SAHRC where the head of the Economic, Social and Cultural Rights Unit briefed participants on some of the work of the Commission which include advocacy and mediation.
The course ended with a moot court session aimed at advancing the cause of human rights in Africa by providing an opportunity for participants to prepare and argue a hypothetical case before the panel of judges. Prof Frans Viljoen concluded that the hypothetical case argued applies to the real world and urged participants to become ambassadors of the values and ideals presented during the course.
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